The opinion of the court was delivered by: BYERS
This is a defendant's motion for summary judgment pursuant to Rule 56, Fed.Rules Civ.Proc., 28 U.S.C.A. because the court is said to lack jurisdiction of the controversy.
The plaintiff's alleged cause arises under the provisions of the Contract Settlement Act of 1944, 41 U.S.C. § 101, and demand is made for judgment in the sum of $ 8,851.44.
It appears that the plaintiff was a sub-contractor, the prime contractor being War Battery Company of Kansas City, Missouri; and the contract under which the claim was made was dated April 11, 1945 for 48,000 pounds of red mercuric oxide, of the estimated contract price of $ 132,960. The sub-contractor proceeded with the performance, but on August 15, 1945 the contract was terminated pursuant to proper action by governmental authorities.
A claim was duly presented on behalf of the sub-contractor to the Settlement Board, an agency of Government constituted to deal with such matters, and thereafter direct negotiations in that behalf were duly conducted, and on March 22, 1947 a determination was made of the amount due to plaintiff, namely, $ 459.04.
In that connection findings of fact and a unilateral determination were enclosed in an envelope addressed to
'Stanley Doggett, Inc. 'c/o Mr. Isidore Daniels, '535 Fifth Avenue, New York.'
The legal sufficiency of that action is the important subject for disposition on this motion.
That determination set in motion on the part of the plaintiff, the provisions of the said Contract Settlement Act in Section 113(b) thereof, namely, he had a right (a) to appeal to the Appeal Board 'in accordance with subsection (d) * * *', or (b) bring suit in the Court of Claims or in a District Court having jurisdiction.
The substance of the defendant's motion is that the plaintiff did neither, and it is conceded that he did not avail himself of the remedy second above stated, until December 21, 1948 when the original complaint in this cause was filed.
Whether he took advantage of the first remedy depends upon the effect to be given to his having caused a notice of appeal to the Appeal Board in Washington to be mailed on June 20, 1947. The notice was not received until June 22nd.
In that respect the plaintiff's contention is that the mailing was in legal effect a filing with the Board on June 20th in accord with the provisions of Regulation 15 of that Board, which reads in material part as follows:
'Rule 3 -- Limitation on Time for Filing Notice of Appeal
'An appeal may be initiated by filing a notice of appeal, as provided in Rule 4(2) within 90 days after delivery to appellant of written findings by the contracting agency, or (b) in case of protest or appeal within the agency, within 90 days after the determination of such protest or appeal, or (c) in case of failure to deliver such findings, within one year after appellant's demand therefor. Unless the notice of appeal is received by the Board ...